Bonfas Onyango Akoko & 2 others v Joseph Twala Ayot (sued as 1st Defendant and on behalf of the Estate of Odero Delewa)

servants, agents, and/or employees, from entering, selling, transferring, subdividing, building upon, cultivating or in any manner interfering with land parcel LR NO. CENTRAL ALEGO/KOMOLO/1099,1100 & 1103. 2) That an order of status quo be maintained over the suit property pending trial. 3) That costs of the application be provided for. 3 The Applicants assert their locus standi as beneficiaries of the estate of the late Petro Mbeya Akoko. In support of their capacity to institute these proceedings, the Applicants rely on a Limited Grant issued by Hon. J.P. Mkala on 9th June 2026 (Annexure F.O.O-2), alongside a family tree setting out the lineage (Annexure F.O.O-1). 4 The Applicants assert that the late Petro Akoko Mbeya died in 1948, leaving behind three wives. Following his death, the widows were inherited under customary practice (Jatero) sequentially by Ayot Mbeya and subsequently by Delewa. 5 It is deponed that Petro Akoko Mbeya died in 1948, leaving three widows whose customary care was assumed sequentially by Ayot Mbeya and Delewa as customary inheritors (jatero). The Applicants assert that during the 1973 land adjudication, Delewa was the head of the homestead and registered the suit properties under the names of Joseph Twala Ayot LR. NO. ALEGO /KOMOLO/1100 RULING SIAYA ELC NO. E021 OF 2026 2

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and Alex Odero Delewa LR. NO. ALEGO /KOMOLO/1099 and LR. NO. ALEGO /KOMOLO/1103). 6 The Applicants contend that as jatero, Delewa held the land in trust for the widows and beneficiaries of Petro Akoko Mbeya. In support, they rely on a Family Tree (Annexure FOO-1) and Baraza Minutes from North Alego Location dated 29th September, 2025 (Annexure FOO-3), which recorded that the suit properties were derived from Petro Akoko Mbeya's estate. 7 It is the Applicants’ case that in breach of this trust, the Defendant’s father registered the suit properties in the names of his own direct children, born out of wife inheritance, to the exclusion of the deceased’s lawful beneficiaries (Annexure F.O.O-4). The Applicants further point out that the 2nd Defendant, who was registered as proprietor of parcel LR. NO. ALEGO /KOMOLO/ 1103, is deceased (Annexure F.O.O-5). 8 The Applicants contend that the Defendants have engaged in acts of intermeddling, including attempting to sell, cultivate and alter the character of the land without consent. They argue that they have established a prima facie case with a probability of success and that they risk irreparable harm if injunctive relief is not granted urgently. 9 In opposition to the Application, the 1 st Respondent depones that he is not a biological son to the late Odero Delewa; rather, he explains that following the death of his biological father, the late Odero Delewa inherited his RULING SIAYA ELC NO. E021 OF 2026 3

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mother under the Luo customary practice of widow inheritance. 10The 1st Respondent categorically denies being an administrator, executor of the Estate of Odero Delewa or the Estate of Alex Odero Delewa, confirming that no grant of representation, whether full or limited, has ever been extracted or issued by any court of competent jurisdiction in respect of the said estates. 11Based on the absence of representation, the 1 st Respondent raises a fundamental challenge to legal capacity (locus standi), asserting that suing him on behalf of, or as a representative for, estates he has no legal mandate to represent renders the suit and the instant application against him wholly incompetent, bad in law, premature and liable to be struck out with costs. 12On the registration status of the suit properties, he confirms that land parcel CENTRAL ALEGO/KOMOLO/1100 is registered in his name, Joseph Twala Ayot while land parcels CENTRAL ALEGO/KOMOLO/1099 and CENTRAL ALEGO/KOMOLO/1103 are registered in the name of the late Alex Odero s/o Delewa, who was his late younger brother, as verified by official search certificates marked as Annexure JTA-1. 13The Respondent depones that these land titles were issued as absolute first registrations arising directly out of an official land adjudication process. He denies the existence of any customary trust over parcels CENTRAL ALEGO/KOMOLO/1099, CENTRAL ALEGO/KOMOLO/1100 or RULING SIAYA ELC NO. E021 OF 2026 4

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CENTRAL ALEGO/KOMOLO/1103 Applicants' assertions of trust characterizing as a the fabrication, an afterthought and a malicious attempt driven by sheer greed and expansionist motives to unlawfully dispossess his family. 14The Respondent acknowledges the historical family context, confirming that his mother was the third wife of the late Petro Akoko Mbeya and that following Petro’s demise in 1948, the widows were cared for and inherited under Luo customary rites sequentially by Ayot Mbeya and subsequently by Odero Delewa. 15He explains that during the land adjudication process land was allocated on a household-by-household basis, leading to separate, distinct and independent title registrations for the respective families. 16The 1st Respondent pointed out that the 1 st Applicant was allocated parcel CENTRAL ALEGO/KOMOLO/1101, as evidenced by the official search marked Annexure JTA-2, which land the Applicants actively occupy and utilize without any interference. 17Addressing physical possession, the 1st Respondent depones that he has built his permanent homestead, continuously resides upon and exercises exclusive user rights over parcel CENTRAL ALEGO/KOMOLO/1100 for the sustenance and housing of his immediate family. 18He further clarifies that ALEGO/KOMOLO /1099 ALEGO/KOMOLO/1103 are RULING SIAYA ELC NO. E021 OF 2026 land parcels and exclusively CENTRAL CENTRAL occupied and 5

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utilized by the immediate family and dependents of his late younger brother, Alex Odero Delewa, who have established their homes thereon. 19The Respondent refutes the Applicants' allegations regarding disposal, stating that he has not taken any steps, negotiated, entered into agreements or harboured any intentions to sell, lease, mortgage, partition or alienate any portion of the suit properties to third parties. 20He emphasizes that the suit land is strictly used for basic residential occupation and small-scale subsistence family farming, rendering the Applicants’ alleged apprehension of waste, damage or third-party alienation speculative, unfounded and devoid of factual backing. 21It is deponed that the Applicants have neither lived on, cultivated nor exercised any user rights or physical control over parcels CENTRAL ALEGO/KOMOLO/1099, CENTRAL ALEGO/KOMOLO/1100 or CENTRAL ALEGO/ KOMOLO/1103 for a continuous period exceeding forty (40) years. That the Applicants slept on their rights by failing to assert any beneficial interest or customary claims during the lifetime of the Deceased and the widows of Petro Akoko Mbeya. 22The Respondent concludes by praying that the Applicants' Notice of Motion application dated 16 th June 2026 be found lacking in merit and accordingly be dismissed with costs awarded to him. 23In direct rebuttal to Paragraphs 3 and 5 of the Replying Affidavit where the Respondent asserts a total lack of legal capacity (locus standi) to be sued on behalf of the RULING SIAYA ELC NO. E021 OF 2026 6

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subject estates the Applicant asserts that the Respondent continues to actively cultivate, lease out, reside upon and is currently in the process of attempting to sell portions of the suit land, namely CENTRAL ALEGO/KOMOLO/1099, CENTRAL ALEGO /KOMOLO /1100 and CENTRAL ALEGO/KOMOLO/1103. 24Reacting to Paragraph 4 of the Replying Affidavit, the Applicant clarifies the nature of the status quo sought under Paragraph 2 of the application. He explains that while the Respondent should be allowed to temporarily continue residing in the homes already constructed on the land, the Court must issue orders restraining all parties from cultivating, leasing, selling or in any other manner dealing with the suit properties pending the hearing and determination of the suit. 25Countering Paragraphs 4 of the Replying Affidavit, the Applicant argues that while the Respondent does not dispute that the suit involves CENTRAL ALEGO/KOMOLO/1099, CENTRAL ALEGO /KOMOLO /1100 and CENTRAL ALEGO/KOMOLO/1103, he fails to acknowledge that his unauthorized management, user rights and attempted commercial disposition over the estate constitute unlawful intermeddling, which legally disqualifies and estops him from challenging his capacity to be sued regarding the said estates. 26Addressing Paragraphs 5 of the Replying Affidavit, the Applicant notes that while the Respondent admits the suit properties were registered in the name of his late brother, RULING SIAYA ELC NO. E021 OF 2026 7

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Alex Odero s/o Delewa, he fails to inform the Court that such registration was illegally affected by a customary inheritor (jatero). The Applicant depones that the jatero, who inherited the widows of Petro Akoko Mbeya (who died in 1948 prior to adjudication), was legally and custombound to hold the suit land in trust for the widows and biological children of Petro Akoko Mbeya. 27In response to Paragraphs 6 and 7 of the Replying Affidavit, the Applicant contends that despite being a brother to the late Alex Odero s/o Delewa, the Respondent continues to deal with the estate illegally and to the total exclusion of the rightful beneficiaries of Petro Akoko Mbeya. He asserts that the Respondent must be held accountable as the property was intended to be held in trust for the beneficiaries of Petro Akoko Mbeya, relying on the Locational Chief’s Baraza Minutes dated 29 th September, 2025 (Annexure FOO-3). 28Highlighted directly against Paragraph 11 of the Replying Affidavit, the Applicant points out the Respondent's own explicit admission that his late mother was married as the third wife to Petro Akoko Mbeya and that following Petro's death the widows were inherited under Luo custom (jatero) sequentially by Ayot Mbeya, out of which arrangement he was born and later by Delewa. The Applicant contends that this admission conclusively fortifies the Applicants' position, that the men who inherited the widows held Petro Akoko Mbeya's land RULING SIAYA ELC NO. E021 OF 2026 8

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strictly as customary trustees for his widows and biological offspring. 29The Applicant reiterates that the Respondent's admissions confirm that the suit properties originally belonged to Petro Akoko Mbeya. He depones that mere reliance on absolute first registration cannot defeat or extinguish the beneficial rights of Petro Akoko Mbeya's beneficiaries, as the customary inheritors (jatero) held title solely on behalf of the deceased widows and children. In conclusion, responding to Paragraph 20 of the Replying Affidavit, the Applicant asserts that it is in the best interest of justice that the prayers in the Respondent's Replying Affidavit dated 10th July 2026 be dismissed with costs. 30The court notes the citation bears a 2 nd respondent being the estate of Odero Delewa. PRELIMINARY OBJECTION 31The application precipitated a Notice of Preliminary Objection dated 10th July 2026 on the grounds that: 1. The 1st Defendant/Respondent does not have the requisite locus standi to either sue and/or be sued on behalf of Odero Delewa (Deceased), whose actions the Plaintiffs contend gave rise to the cause of action herein; 2. The 2nd Defendant/Respondent is neither a natural person nor a juridical person, hence no suit can be instituted and/or sustained against it; and RULING SIAYA ELC NO. E021 OF 2026 9

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3. The suit is time-barred under the provisions of the Limitation of Actions Act, rendering the suit misconceived, bad in law, incurably defective and an outright abuse of the court process. 1ST RESPONDENTS REPLYING AFFIDAVIT 32The 1st respondent responded vide affidavit sworn on 18 th July, 2026 by Fredrick Otieno Onyango who depones as follows; 1. Countering the 1st Defendant’s claim of lacking legal capacity (locus standi) to defend the estate forming part of the suit, the Applicant asserts that the 1st Defendant continues to actively cultivate, lease out, reside upon and is even in the process of selling portions of the suit land namely CENTRAL ALEGO/KOMOLO/1099, CENTRAL ALEGO /KOMOLO/1100 and CENTRAL ALEGO/KOMOLO/1103. The Applicant contends that these acts amount to active intermeddling with the suit properties and the 1 st Defendant should not be permitted by this Court to benefit from an illegality. 2. The Applicant urges the Court to compel the 1 st Defendant to take out Letters of Administration Ad Litem over the subject estate, pointing out the contradiction in the 1st Defendant claiming a lack of capacity to be sued on behalf of his late brother, Odero Delewa, while simultaneously RULING SIAYA ELC NO. E021 OF 2026 10

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continuing to occupy, use and benefit from the suit properties to the total exclusion of other rightful beneficiaries. 3. Regarding interim preservation, the Applicant reiterates that status quo as prayed for in Paragraph 2 of their application dated 16 th June 2026 ought to be maintained to allow the 1 st Defendant to continue residing in the homes already constructed on the land. However, he prays that all parties be strictly restrained from cultivating, leasing, selling or in any other manner dealing with the suit properties pending the final hearing and determination of this suit. 4. Consequently, the Applicant maintains that it is in the best interest of justice that the prayers contained in the 1st Defendant’s Notice of Preliminary Objection be dismissed with costs. SUBMISSIONS 33This Court directed that the Preliminary Objection and the Application be disposed of by way of written submissions, to be filed within fourteen (14) days from the 10 th of July, 2026. The Plaintiff/Applicant submissions are not on record as at 21/09/2026. 34The 1st Defendant filed his written submissions on the 18 th of August, 2026, well outside the timelines so fixed and without leave of this Court. This notwithstanding, this Court in the interest of substantive justice, shall consider RULING SIAYA ELC NO. E021 OF 2026 11

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the 1st Defendant’s submissions on their merits together with the rest of the material on record and shall proceed to determine both the Preliminary Objection and the Application accordingly. 35In support of his Notice of Preliminary Objection dated 10 th July 2026, the 1st Defendant filed written submissions dated 18th August 2026 through the firm of G. O. Otieno & Associates Advocates. 36The 1st Defendant framed two issues for determination: whether the 1st Defendant can sue or be sued on behalf of the estate of Odero Delewa (Deceased) for causes of action against the Deceased; and whether the suit is tenable in light of the provisions of Section 7 of the Limitation of Actions Act. 37On the first issue, the 1st Defendant submits that a party approaching or being sued in Court must have the requisite legal capacity, relying on Alfred Njau v City Council of Nairobi [1983] KLR 625, Julian Adoyo Ongunga v Francis Kiberenge Abano, Migori Civil Appeal No. 119 of 2015 and Trouistik Union International & Another v Jane Mbeyu & Another (2008) 1 KLR (G&F) 730 submitting that by dint of Section 82(a) of the Law of Succession Act, only a personal representative may enforce a cause of action vested in a deceased person. He further relies on Waitimu & Another v Githeiya (Environment and Land Appeal 20 of 2023) [2025] KEELC 8440 (KLR) and Daykio Plantations Limited v National Bank Limited & RULING SIAYA ELC NO. E021 OF 2026 12

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Another (2019) eKLR for the proposition that a person who has not obtained a grant of letters of administration has no locus standi to sue or be sued on behalf of a deceased's estate. 38Applying these authorities, the 1 st Defendant submits that the cause of action as pleaded arises from the actions of Odero Delewa, who is deceased and who happens to be the 1st Defendant's father and not from any act of the 1 st Defendant in his personal capacity. He submits that since he is not the administrator of the estate of Odero Delewa, he does not have the requisite locus standi to be sued in the instant suit rendering the suit against him incompetent bad in law and liable to be struck out. 39On the second issue, the 1st Defendant submits that Section 7 of the Limitation of Actions Act bars an action to recover land after twelve (12) years from the date the right of action accrued, relying on Bosire Ongero v Royal Media Services [2015] eKLR, Edward Moonge Lengusuranga v James Lanaiyara & Another (2019) eKLR, Iga v Makerere University (1972) EA and Gathoni v Kenya Co-operative Creameries Ltd (1982) KLR 104. He points out that the Plaintiffs, in paragraph 3 of their Plaint dated 16 th June 2026, plead that the cause of action herein arose from the actions of the Deceased which took place in the year 1969, a period of about fifty-seven (57) years before the suit was filed and submits that the suit is accordingly statute-barred and stale. RULING SIAYA ELC NO. E021 OF 2026 13

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40In conclusion, the 1st Defendant submits that the instant suit as presented offends express provisions of the law that this Court consequently lacks jurisdiction to entertain it and urges the Court to allow the Preliminary Objection in its entirety and dismiss the Plaintiffs' suit with costs to the Defendants. ANALYSIS AND DETERMINATION 41 I have carefully considered the Notice of Motion application, the Supporting Affidavit sworn by the Plaintiff/Applicant, Respondent and the annexures thereto. I have also considered the grounds upon which the Preliminary Objection is premised. The following issues commend determination: i. Whether the Notice of Preliminary Objection is properly raised. ii. Whether the suit is time barred under the provisions of the Limitation of Actions Act. iii. Who bears the costs of the Application? 42The Court will first determine whether the objection raised by the 1st Defendant qualifies to be a Preliminary Objection within the meaning set in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where Law J A stated that; “So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication RULING SIAYA ELC NO. E021 OF 2026 14

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out of the pleadings and which objection point may dispose the suit”. Further the Court stated; “A preliminary objection raises a pure point to law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 43In the case of Alfred Njau-Vs- City Council of Nairobi (1983) KLR 625, the Court of Appeal held inter alia that: "...Locus standi” literally means a place of standing and refers to the right to be heard in Court or other proceedings and to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding". 44It is therefore evident that locus standi is the right to appear and be heard in Court or other proceedings. Therefore, if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. It is further evident that if this Court was to find that the Applicant has no locus standi, then the Applicant cannot be heard and that point alone may dispose of the suit. RULING SIAYA ELC NO. E021 OF 2026 15

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45In the case of Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu High Court Civil Case No.22 of 1999, the Court held that: “When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”. 46Section 2 of the Civil Procedure Act defines legal representative as follows: “Legal representative” means a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued”. 47A legal representative as defined in the Civil Procedure Act is equivalent to the definition of a personal representative as defined under the Succession Act Cap 160 Laws of Kenya. Section 3 of the Law of Succession Act defines “Personal representative” as “the executor or administrator as the case may be of a deceased person”. Administrator in the same section is defined as: “a person to whom a grant of letters of administration has been made under this Act”. RULING SIAYA ELC NO. E021 OF 2026 16

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48It is therefore clear that a legal representative is a person to whom a grant of letters of administration has been made under the Succession Act. The definition does not envisage any other person and therefore the position remains that it is only a legal representative who can be substituted in place of a deceased defendant or plaintiff as the case may be. An intermeddler is not recognized and as such cannot be substituted in place of a deceased person. 49In Mary Nanjala Muhalya vs Ambrose Kipruto (2014) KEHC 2964 (KLR) the High Court of Kenya outlined: “It would appear that in Kenya, intermeddlers in the estate of a deceased can only be punished for doing so for to intermeddle in the property of a deceased is a criminal offence which according to section 45 of the law of Succession Act Cap 160 Laws of Kenya an intermeddler may be fined 10,000/= or imprisoned for one year. The intermeddler may also be called upon to account to a person lawfully entitled to administer the estate of a deceased. There is no basis in law for an intermeddler to be substituted as a party. The only person recognized is a legal representative. This being the position, I find that the respondent herein cannot be substituted as a defendant in this suit.” 50Applying the above to the present case, while the law provides mechanisms to penalize or demand an accounting from an intermeddler, an intermeddler has no RULING SIAYA ELC NO. E021 OF 2026 17

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legal capacity or locus standi to represent a deceased estate in a civil suit. A party cannot institute or sustain a suit against a person in a representative character when that person holds no grant of representation over the subject estate. 51Having now considered the objections raised by the 1st Defendant, the Court finds that lack locus standi can dispose of the matter preliminarily without having to resort to ascertaining of facts. The Preliminary Objection raised by the 1st Defendant fits the description of Preliminary Objection as stated in the Mukisa Biscuit case. 52I have looked at the plaint and paragraph 5 and 6 a are very clear that the 1st Defendant is being sued for the actions of his deceased father. Prayer No. 1 of the reliefs sought in this suit is also a declaration against the defendant’s father. 53It is the finding of this court that the 1st Defendant lacks the legal capacity and locus standi to defend this suit in that representative capacity. 54The Defendant also terms the Plaintiffs' suit as time-barred under the provisions of the Limitation of Actions Act (Cap 22). 55On the question whether an issue of limitation of time can be raised through a preliminary objection, the court in the case of Sichuan Huashi Enterprises Corp. Limited v Micheal Misiko Muhindi [2019] eKLR at paragraph 13 and 14 had this to say; - RULING SIAYA ELC NO. E021 OF 2026 18

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“The law as I understand it is that the defence of limitation of time is a matter for determination at the trial; it cannot be dealt with in a summary manner or at preliminary stage or as a preliminary objection. The court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial. On this see the case of Oruta &Another vs. Nyamato [1998] KLR 590, where the court held that limitation of action: “… could only be queried at the trial but not by… a preliminary objection… The appellant could raise the objection at the trial and the trial judge would have to deal with the matter on the evidence to be adduced at the trial’’ 56 In Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997, the court quoted with approval the words of Gachuhi, J.A., the leading judge in the Oruta case (supra) that: “It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…’’ 57Moreover Section 26 of the Limitation of Actions provides that: RULING SIAYA ELC NO. E021 OF 2026 19

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Where, in the case of an action for which a period of limitation is prescribed, either – i. the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or ii. the right of action is concealed by the fraud of any such person as aforesaid; or iii. the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it. 58In the instant case, the Applicant has raised allegations of fraud by the actions of the Defendants which facts if any, must be ascertained by the court through the process of a full trial where evidence will have to be adduced.The issue of when fraud was discovered is a factual matter. This alone would dispose of this preliminary point. I find that this ground of the preliminary objection must therefore fail. 59This court has found that the 1st Defendant lacks the legal capacity (locus standi) to be sued as a representative for the Estate of Odero Delewa, the Preliminary Objection therefore succeeds on that point. As a direct consequence, the Plaintiff/Applicants' Notice of Motion, which sought injunctive orders against the 1st respondent in that representation cannot stand and must fail. RULING SIAYA ELC NO. E021 OF 2026 20

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60The Court makes the following Orders: i. The 1st Defendant’s Notice of Preliminary Objection dated 10th July 2026 is hereby upheld to the extent that the Defendant lacks locus standi to be sued in a representative capacity on behalf of the Estate of Odero Delewa. ii. The Plaintiffs/Applicants' Notice of Motion Application dated 16th June 2026 is accordingly struck out. iii. The suit must also be struck out. iv. Each Party to bear their own costs of this suit. It is so ordered Dated at Siaya this 30th Day of September 2026 HON. JUSTICE A. E. DENA JUDGE 30/09/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Oginga for Plaintiff Mr. G. Otieno for the Defendant Court assistant: Victor Bwire RULING SIAYA ELC NO. E021 OF 2026 21

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